THE WELCH COMPANY
440 Davis Court #1602
San Francisco, CA 94111-2496
415 781 5700


S U M M A R Y


DIARY: April 1, 1998 10:00 AM Wednesday; Rod Welch

Preliminary Hearing re AAA re Chaikin v. Weinmann, telecon.

1...Summary/Objective
2...Preliminary Hearing on Status of Discovery
.....Appearances
3...Claimant to Produce Documents OA 980406
4...Claimant's Detailed Description of Claims to Be Submitted 980501
5...Respondent Foti May Not Have Been General Contractor
6...Respondents Produce Documents, File Counter-claims on 980601
7...Claimant Respond to Respondent's Demand for Docs, on 980615
8...Bifurcate Hearing to Reduce Expense of Parties
9...Claimant Drops Claim for Lost Income
10...Procedures for Order of Testimony and Cross-Examination
11...Communication with Arbitrator
12...Using Email, Transferring Content to Issue AAA Correspondence


..............
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CONTACTS 
0201 - Amer. Arbtrn Assn.                 415 981 3901 fax 781 8426
020101 - Ms. Marcela Taylor; Case Administrator =415 984 5433
020102 - Case Administration
0202 - Law Offices Langford               510 .......  fax or 800...
020201 - Mr. James R. Langford, III, Esq.
0203 - Law Offices, A.J. Keiley           408....      fax or 800...
020301 - Mr. Anthony J. Keiley, III, Esq.
0204 - Germino, Runte... Law Ofcs         650 857 9211 fax 852 9256
020401 - Mr. Paul J. McDonald, Esq.
0205 - Amer. Arbtrn Assn.                 415 981 3901 fax 781 8426
020501 - Ms. Michele Gordon; Tribunal Administrator =415 984 5432
020502 - Case Administration

SUBJECTS
Agenda for 980401 Hearing
Discovery Status and Schedule

0504 -    ..
0505 - Summary/Objective
0506 -
050601 - Follow up ref SDS 22 6380, ref SDS 21 4559.
050602 -
050603 - Claimant will submit on 980501 detailed statement of claims against
050604 - each Respondent.  Claimant has dropped any claim for loss of income.
050605 - Mr. McDonald cited a document that may show Mr. Foti was not hired as
050606 - a General Contractor, and so may not have the liability claimed by
050607 - Chaikin in the Demand for Arbitration.  After further discovery, a
050608 - preliminary hearing will be held on 980622 to determine whether there
050609 - is sufficient grounds to conduct a separate hearing on Mr. Foti's role
050610 - on the project.  Remaining discovery and hearing preparation will be
050611 - scheduled at the 980622 hearing.
050612 -
050613 -
050614 -
0507 -
0508 -
0509 - Discussion
0510 -
051001 -  ..
051002 - Preliminary Hearing on Status of Discovery
051003 -
051004 - Follow up ref SDS 22 6720, ref SDS 21 4704.
051005 -
051006 - This hearing occurred at 1000 per schedule set at ref DRP 16 4526, and
051007 - 2nd preliminary hearing conference call on 980206. ref SDS 8 2640,
051008 - which was clarified in AAA letter 980303. ref DRP 14 4227 per the
051009 - record on 980227. ref SDS 13 1040 and ref SDS 13 1378
051010 -
051011 -      ..
051012 -     Appearances
051013 -
051014 -     Follow up ref SDS 22 6882.
051015 -
051016 -     Claimant Chaikin, owner
051017 -
051018 -             Anthony Keiley, III, Esq
051019 -
051020 -     Respondent Weinmann, architect
051021 -
051022 -             James R. Langford, III, Esq
051023 -
051024 -     Respondent Foti, general contractor
051025 -
051026 -             Paul McDonald, Esq
051027 -             Germino, Runte... Law Ofcs
051028 -
051029 -
051030 -  ..
051031 - Claimant to Produce Documents OA 980406
051032 -
051033 - Mr. Keiley said his office is nearing completion of assembling and
051034 - copying documents under discovery demand for production he received
051035 - from Respondent Weinmann.
051036 -
051037 - He indicated copies will be provided to both Respondents.
051038 -
051039 -     [On 980414 received notice that Claimant produced documents on
051040 -     980413, approximatley 1 week later than 980406 date indicated
051041 -     today. ref SDS 29 2690]
051042 -
051043 -
051044 -
0511 -

SUBJECTS
Agenda for 980401 Hearing
Discovery Status
Detailed Claims, Liability and Amounts, Against Weinmann
Detailed Statement of Claims, Against Foti
Amend Claims and Counterclaims Schedule

0908 -
090801 -  ..
090802 - Claimant's Detailed Description of Claims to Be Submitted 980501
090803 -
090804 - Mr. Keiley noted that his letter dated 980317, ref DRP 20 2801, does
090805 - not provide adequate detail on claims against Respondent Foti.
090806 -
090807 - There was discussion of AAA order #2, as revised on 980303, which
090808 - scheduled Claimant's detailed claim to be submitted to Respondent Foti
090809 - on or before 980317. ref DRP 14 2181
090810 -
090811 - Mr. Keiley cited discussions the past week among the parties counsel
090812 - that resulted in agreement to alter the prior schedule.
090813 -
090814 - Mr. Keiley advised his research has enabled him to learn about the
090815 - level of effort needed to prepare a detailed statement of claims
090816 - against each Respondent.  He related having commissioned an expert to
090817 - investigate and provide additional information on Claimant's
090818 - entitlement and damages.
090819 -
090820 - Mr. Langford and Mr. McDonald noted having had discussions with Mr.
090821 - Keiley on obtaining a detailed statement of claims.
090822 -
090823 - Mr. Keiley proposed submitting an electronic spreadsheet showing the
090824 - amounts claimed, and the contract authority relied upon for seeking
090825 - recovery against each respondent for each item of entitlement.  Mr.
090826 - Keiley indicated the spreadsheet would primarily use the "Punchlist"
090827 - items in Exhibit B of Claimant's filing dated 980118. ref DRP 6 1763,
090828 - received on, ref SDS 6 4515, which was also submitted to Respondent
090829 - Foti via Claimant's letter dated 980317, ref SDS 23 3723, which Mr.
090830 - Keiley indicates today was not fully responsive. ref SDS 0 1858
090831 -
090832 - Mr. Langford and Mr. McDonald indicated the spreadsheet proposed by
090833 - Mr. Keiley would be adequate to enable them to prepare for the
090834 - hearing.
090835 -
090836 -  ..
090837 -
090838 - Mr. Keiley proposed submitting the detailed statement of claims on
090839 - 980501.
090840 -
090841 - The parties did not object.
090842 -
090843 - The Arbitrator approved.
090844 -
090845 -
090846 -
0909 -

SUBJECTS
Discovery Status
Bifurcate Case
Foti Claims not to have been General
Foti General Contractor

1407 -
140701 - Respondent Foti May Not Have Been General Contractor
140702 -
140703 - There was discussion that Respondent Foti's statement of counter-
140704 - claims dated 980324, ref DRP 23 2621, received on 980326, as shown at
140705 - ref SDS 25 6050, cites an amount of $100K that is not reflective of
140706 - the contract submitted by Claimant in the Demand for Arbitration.
140707 -
140708 - Mr. McDonald noted that Respondent did not file a detailed statement
140709 - of claims, as called for in the AAA order #2 dated 980303. ref DRP 14
140710 - 2153  He indicated continuing research he needs to perform in order to
140711 - prepare a statement of counter-claims.
140712 -
140713 - The Arbitrator asked about the source for the $100K amount in Foti's
140714 - letter dated 980324? ref DRP 23 2621 per analysis at ref SDS 25 6050.
140715 - ..
140716 - Mr. McDonald held out a document for observation by the
140717 - Arbitrator and the other counsel.  He did not distribute the document
140718 - for examination, but commented that his research indicates this new
140719 - document may be an agreement that replaced the contract that Claimant
140720 - used as a basis for filing the Demand for Arbitration.  Mr. McDonald
140721 - said his interpretation of the document is that Mr. Foti did not
140722 - perform in the capacity of General Contractor, but was merely a
140723 - supervisor and/or Construction Manager to assist the owner, who acted
140724 - as his own General Contractor.  Mr. McDonald said the document calls
140725 - for his client to be paid $100K.
140726 -
140727 - The Arbitrator suggested that Mr. McDonald provide copies for
140728 - examination during the hearing, and offered to enlist the AAA staff to
140729 - assist in making copies.
140730 -
140731 - Mr. McDonald indicated an unwillingness to submit it into the record
140732 - until he investigates further about its origin and application.  He
140733 - seemed to be uncertain about his client's understanding of the
140734 - agreement with the Claimant.
140735 -
140736 - Mr. Keiley was unaware of the document.  He maintains it must be
140737 - produced pursuant to Claimant's demand for documents.
140738 -
140739 - Mr. Langford requested the document for impact on Respondent's
140740 - liability to supervise the work of a General Contractor.  If the owner
140741 - was the General Contractor, this may affect the Architect's role to
140742 - provide administration of the construction contract, if such contract
140743 - was eliminated, as suggested by Mr. McDonald.
140744 -
140745 - Mr. McDonald argued that production of the document at this time would
140746 - harm his client by providing new information to the Claimant on which
140747 - to formulate his detailed claim spreadsheet.
140748 -
140749 - There was some heated discussion between Mr. Keiley and Mr. McDonald
140750 - about "gamesmanship".  Mr. Keiley argued the Claimant was entitled to
140751 - the document under AAA rules for discovery.
140752 -
140753 - The Arbitrator noted that Mr. Keiley will be permitted to amend the
140754 - Claim once the documents have all been produced, including any new
140755 - information concerning the contract between the parties.
140756 -
140757 -
1408 -

SUBJECTS
Discovery Status and Schedule
Statement of Claims, Counterclaims Schedule

1805 -
180501 -  ..
180502 - Respondents Produce Documents, File Counter-claims on 980601
180503 -
180504 - Mr. Keilley suggested that on 980601 the Respondents will each...
180505 -
180506 -     1.  Produce documents pursuant to Claimant's separate demands.
180507 -
180508 -         Respondent Foti will include in this production documents the
180509 -         document he cites this morning as a possible replacement for
180510 -         the contract relied upon by Claimant in the Demand for
180511 -         Arbitration.
180512 -
180513 -     2.  File any counter-claims against Claimant.
180514 -
180515 -     3.  File any additional demands for documents from Claimant as a
180516 -         result of having received Claimant's initial documents
180517 -         produced OA 980406, and also having received on 980501
180518 -         Claimant's detailed statement of claims against each party.
180519 -
180520 - Mr. Langford and Mr. McDonald agreed to this schedule.
180521 -
180522 -
180523 -
180524 - Claimant Respond to Respondent's Demand for Docs, on 980615
180525 -
180526 - Mr. Keiley agreed to produce on 980615, any additional documents that
180527 - may requested by each Respondent on 980601.
180528 -
180529 -
180530 -
180531 -
1806 -

SUBJECTS
Bifurcate Hearing
Order of Testimony and Cross-examination
Bifurcate Case

2206 -
220601 -  ..
220602 - Bifurcate Hearing to Reduce Expense of Parties
220603 -
220604 - Follow up ref SDS 22 2502.
220605 -
220606 - Mr. McDonald requested that, based on the new document he cites this
220607 - morning, ref SDS 0 4689, further consideration should be given to
220608 - bifurcating the hearing, as he proposed at the 980313 hearing. see the
220609 - record at ref SDS 22 2502
220610 -
220611 - He suggested a hearing to determine the contract between Claimant and
220612 - Foti, specifically whether Foti was the General Contractor and liable
220613 - to perform the contract filed as the basis of Claimant's Demand for
220614 - Arbitration, or whether the owner was the General Contractor and Mr.
220615 - Foti provided support services, such as project manager, construction
220616 - manager, contract consultant, etc.
220617 -
220618 - Mr. Langford and Mr. Keiley suggested that subject to review of the
220619 - alternate contract document Mr. McDonald cites this morning, that
220620 - they agree to a separate hearing to determine the contract between
220621 - Claimant and Foti.
220622 -
220623 - The Arbitrator commented that holding two hearings could extend the
220624 - time of the case and increase the cost to the parties, and that the
220625 - issue of Foti's role can be decided as an affirmative defense in a
220626 - single hearing, as explained at the hearing on 980313. ref SDS 22 4047
220627 -
220628 - Mr. McDonald noted that a hearing on whether Mr. Foti was the General
220629 - Contractor may only require 1 - 2 days.  If his client is found not be
220630 - the General Contractor, then he may be saved the expense of a 5 - 10
220631 - day hearing.
220632 -
220633 -  ..
220634 -
220635 - Mr. Keiley proposed that the parties proceed with the case schedule on
220636 - discovery, as developed this morning.  Another preliminary hearing can
220637 - be held on 980622 to determine whether a separate hearing is needed on
220638 - the scope of Mr. Foti's role on the project.
220639 -
220640 - If that determination is made, then a schedule will be developed for
220641 - discovery focused on that issue, and hearing date will be set.
220642 - Otherwise a schedule will be developed to hear the main issues in the
220643 - case.
220644 -
220645 -
220646 -
220647 -
2207 -

SUBJECTS
Lost Income Legal Practice

2404 -
240401 -  ..
240402 - Claimant Drops Claim for Lost Income
240403 -
240404 - Mr. Keiley advised that the Claimant is dropping any claim and will
240405 - not present evidence seeking to recover damages for lost income, which
240406 - is cited in Claimant's detailed statement of claim dated 980118. see
240407 - ref DRP 5 1846 which was received on 980129. ref SDS 6 2653
240408 -
240409 -     [On 980414 received letter from counsel confirming this position.
240410 -     ref SDS 29 3333]
240411 -
240412 -
240413 -
2405 -

SUBJECTS
Order of Testimony and Cross-examination

2704 -
270401 -  ..
270402 - Procedures for Order of Testimony and Cross-Examination
270403 -
270404 - Follow up ref SDS 22 7424, ref SDS 18 3848.
270405 -
270406 - There was no discussion because the hearing will be scheduled during
270407 - the preliminary hearing 980622.  Once the hearing is schedule,
270408 - matters of hearing procedure will be addressed.
270409 -
270410 -
270411 -
2705 -

SUBJECTS
Exhibit Identification
Stipulate Uncontested Facts
Site Visit by Arbitrator, Schedule

3006 -   ..
300601 - Follow up ref SDS 22 8492, ref SDS 18 2024.
300602 -
300603 - There was no discussion of these issues.  They will be determined
300604 - following the hearing on 980622.
300605 -
300606 -
300607 -
300608 -
300609 -
3007 -

SUBJECTS
Communication with Arbitrator

3204 -
320401 -  ..
320402 - Communication with Arbitrator
320403 -
320404 - Follow up ref SDS 22 7605, ref SDS 18 3744.
320405 -
320406 - There was brief discussion of procedures for communicating with the
320407 - Arbitrator.  The Arbitrator will clarify this procedure in the order
320408 - for the hearing today.
320409 -
320410 - The procedure was set in the hearing on 980116. ref SDS 4 1794  This
320411 - was confirmed by the order issued by AAA dated 980120, ref DRP 4 2639,
320412 - received on 980126, ref SDS 5 3166.  The procedure was affirmed in AAA
320413 - letter dated 980303, ref DRP 14 3578 received on 980304, ref SDS 17
320414 - 5390, because parties had not followed it, per record on 980302, ref
320415 - SDS 15 2919.
320416 -
320417 -    [On 980402 I prepared an order covering this point. ref SDS 27
320418 -    1923]
320419 -
320420 -
320421 -
3205 -
3206 -

SUBJECTS
Administration
Email Procedures

3305 - 1135 visited Marcela
3306 -
330601 -  ..
330602 - I explained generally results of the hearing to have a hearing on
330603 - 980622 to decide on whether it would be helpful to bifurcate the
330604 - hearing and hold a separate hearing to establish the contract that
330605 - applies to the case.
330606 -
330607 - Marcela asked Michele Gordon to join us.  Michele is Marcela's
330608 - supervisor
330609 -
330610 - Michele indicated our procedure of conducting a preliminary hearing
330611 - by conference phone after some discovery to determine some matters of
330612 - liability is the correct procedure.
330613 -
330614 -
330615 -
330616 -  ..
330617 - Using Email, Transferring Content to Issue AAA Correspondence
330618 -
330619 - Marcela asked for help using cut and paste to transfer letters I send
330620 - by email into an AAA format, so they do not have to key everything in
330621 - each time.
330622 -
330623 - I showed her how she can do this procedure.
330624 -
330625 -     [On 980406 received note from Marcela saying this new procedure
330626 -     worked to save time. ref SDS 28 3657]
330627 -
330628 -
330629 -
330630 -
3307 -
Distribution. . . . See "CONTACTS"